[2] Whether a subsidiary who only provides for the revocation of license as a means of sanction when he/she sold alcoholic beverages to a non-licensed dealer while granting a license for alcoholic beverage sales business goes beyond the limit in its contents (negative)

[3] The legal nature of the Regulations on the Management of Liquor Tax (National Tax Service Directive No. 1264) and the standard of determining whether the revocation of a liquor sales business license is legitimate

[4] The case holding that a revocation disposition against a seller of alcoholic beverages who sold alcoholic beverages to a non-licensed seller in violation of the licensing conditions was beyond the scope of discretion in light of all the circumstances

[2] In granting a license for a liquor sales business, the head of a tax office may designate conditions to be observed when it is deemed necessary for preserving liquor tax, and sales of alcoholic beverages to an unlicensed seller is likely to threaten transaction without data or disguised transaction, and may affect order in the distribution of alcoholic beverages and transaction order of tax invoices, and thus, the preservation of liquor tax may be indirectly harmed. In addition, even if a license is revoked as a restrictive measure at the time of selling alcoholic beverages to an unregistered seller, the issue of whether the revocation of other beneficial administrative acts is within the scope of discretionary power under the above licensing conditions is separate from whether the pertinent license conditions are revoked within the scope of discretionary power. In light of the principle of proportionality and equality in comparison with the reasons for revocation and suspension of a license under the Liquor Tax Act, the contents of the relevant sanction cannot be deemed to go beyond the limits

[3] Article 11 of the Liquor Tax Act and Article 16 of the Enforcement Decree of the same Act (National Tax Service Directive No. 1264) provides for the purpose of increasing the tax revenue, it is merely a general rule for handling affairs inside the National Tax Service that set the general guidelines and standards for handling liquor tax affairs for the purpose of increasing the tax revenue, and there is no external legal effect to externally bind the court or the people. Thus, a license should not be revoked on the ground that the above provision for handling liquor tax affairs and the license conditions accordingly fall under the grounds for revoking the license. In addition, by comparing and comparing the provisions and purport of the liquor tax law, and all circumstances of the pertinent case, the revocation of a license shall be determined within the scope of discretion, based on whether the revocation of the license is appropriate by comparing and comparing the major public interest needs, etc. and other disadvantages the other party to whom the revocation is justified.

[4] The case holding that a revocation disposition against a seller of alcoholic beverages who sold alcoholic beverages to a non-licensed seller in violation of the licensing conditions was beyond the scope of discretion in light of all the circumstances

2. The costs of lawsuit shall be borne by the defendant.

According to the evidence Nos. 1-1, 2, and 2-1, the following facts may be acknowledged:

A. On January 15, 1997, the Plaintiff obtained a license for import of alcoholic beverages from the Defendant (the date of the first license on February 13, 1993), and on August 23, 1996, the Plaintiff is a company that runs the import business of alcoholic beverages and the import-specialized wholesale business by obtaining a license for import-specialized wholesale business (the date of the first license on April 29, 1993) respectively.

B. However, on August 10, 1998, the Defendant issued the instant disposition to revoke the Plaintiff’s respective licenses on the ground that the Plaintiff violated Article 11 of the Liquor Tax Act and Article 16 of the Enforcement Decree of the same Act by reason of the violation of subparagraph 2 of the conditions of designation of each license (when alcoholic beverages are sold to a non-licensed dealer).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that (1) the Plaintiff’s designation condition No. 2 for each of the above licenses is unlawful since it concerns items not listed in Article 18(1) of the Liquor Tax Act, which provide the grounds for revocation and suspension of a liquor sales business license, and there is no legal basis. Thus, since the contents are more severe than the provisions of the Liquor Tax Act, the instant disposition based on the above designation conditions is unlawful, and even if the above designation conditions are not invalid, considering all circumstances such as the nature and content of the violation, the Plaintiff’s disadvantage is too excessive compared to the public interest to be achieved by the instant disposition, and thus, it is unlawful.

B. Facts of recognition

The following facts may be acknowledged as Gap's evidence 3, 4-1, 2, 3, 5-1 through 23, Gap's evidence 6-1, 2, 8-1 through 10, Gap's evidence 9, 11, Gap's evidence 14-1 through 7, Eul's evidence 14-2, 2, Eul's evidence 5, 6, and witness's testimony, and the whole purport of the pleadings.

(1) On November 24, 1992, the Plaintiff, a corporation with total capital of KRW 5,130,000,000, established by foreign capital for the purpose of the liquor trade business, trade agency business, liquor sales business, and distribution business, etc., was running a liquor import business and import liquor specialized wholesale business with a license granted by the Defendant under the Liquor Tax Act from March 193, 193.

(2) 원고는 외국산 위스키, 코냑, 와인 등의 주류를 수입하여 백화점, 할인점, 주류전문점 및 유흥업소에 판매하고 있으며, 1996년의 총매출액은 금58억 원 정도이며, 1997년의 총매출액은 금 83억 원 정도이다.

(3) From around 1996, the Plaintiff supplied 2 soldiers, who were for sale of professional viis of golf courses, to a small company (hereinafter “non-party company”). At the time of commencing transactions with the non-party company, the non-party company did not obtain a liquor sales license. At the time of the Plaintiff’s commencement, the non-party company had a retail business license, wholesale business license, and the Plaintiff’s employee stated “food and miscellaneous” on the issue of the business registration certificate, and the non-party company began to supply alcoholic beverages by knowing that the non-party company constitutes a constructive sales license under Article 8(3) of the Liquor Tax Act and Article 15 of the Enforcement Decree of the same Act.

(4) However, around early 1998, the Plaintiff discovered the Nonparty’s embezzlement, a business employee in charge of Nonparty Company’s audit results on the business employee. The Nonparty, rather, notified the Defendant of the fact of transaction with the Plaintiff’s non-licensed vendor and made the instant disposition.

(5) The sales amount of the Plaintiff’s non-party company is KRW 10,872,40 in 196, KRW 36,383,430 in 197, KRW 1,331,00 in total in 198, KRW 48,586,830 in total, and KRW 48,586,830 in total during the above period, and the ratio of gross sales to the non-party company’s gross sales amount is merely KRW 0.3% in total during the above period.

(6) The Plaintiff issued a tax invoice under the name of another transaction party for the purpose of selling part of imported alcoholic beverages to foreign embassies or the Plaintiff’s officers and employees, and issued the tax invoice for the payment of the value-added tax, and there was no record of detection of tax evasion except for those subject to the imposition of the value-added tax. The Plaintiff did not cause any omission of liquor tax or value-added tax in liquor transactions

(7) Employees of the Plaintiff Company are currently at least 40 inventory, and foreign capital which has recently been incorporated by the Plaintiff Company is undergoing investment negotiations on a scale of KRW 00 million with domestic manufacturers.

(c) Markets:

(1) First, we examine whether subparagraph 2 of the above designated conditions did not have legal effect because of the lack of legal basis or exceeded the limitation of the reservation of the right to withdraw the beneficial administrative act.

Article 11 of the Liquor Tax Act provides that "The head of the competent tax office may, if deemed necessary for preserving liquor tax in granting a license for manufacture or sales business of alcoholic beverages, malt, wort, pre-liquor or pre-liquor, designate the conditions to be complied with in making or selling business of alcoholic beverages," and Article 16 of the Enforcement Decree of the same Act provides that "the head of the competent tax office may designate the conditions to be complied with in making or selling business of alcoholic beverages, malt, or pre-liquor, or in making or selling business of alcoholic beverages, if deemed necessary for preserving liquor tax, the head of the competent tax office may designate the matters provided for in Article 11 of the Act in order to preserve liquor tax in granting a license for manufacture or sales business of alcoholic beverages, malt, or pre-liquor," and Article 11 of the same Act provides that "if deemed necessary for preserving liquor tax, the head of the competent tax office may designate the matters provided for in Article 11 of the Act."

Furthermore, in granting a license, the head of a tax office may set conditions to be observed when deemed necessary for preserving liquor tax, and the sales of alcoholic beverages to a non-licensed seller who is prohibited under subparagraph 2 of the above designated conditions are likely to cause an indirect threat to the preservation of liquor tax as it promotes transaction without materials or disguised transaction, and may affect order in the distribution of alcoholic beverages and transaction in tax invoices, and thus, it may indirectly affect the preservation of liquor tax. Although Item 2 of the above designated conditions stipulate only the cancellation of license as a restrictive means, it shall be separate whether the cancellation of the beneficial administrative act under the designated conditions is within the scope of discretion, in comparison with the reasons for cancellation and suspension of license under the Liquor Tax Act, the contents of the relevant restriction cannot be deemed to go beyond the limits in light of the principle of proportionality and equality (see Supreme Court Decision 92Nu6020, Aug. 18, 1992).

(2) Next, we examine whether the instant disposition was taken within the scope of discretion.

The Defendant’s disposition was conducted according to the terms and conditions of the Plaintiff’s respective licenses pursuant to Article 11 of the Liquor Tax Act, Article 1264 of the National Tax Service Directive prepared based on Article 16 of the Enforcement Decree of the same Act, and Article 26(1) of the Regulations on the Handling of Liquor Tax Affairs. However, the above provision on the handling of liquor tax affairs is merely a general rule on the handling of liquor tax affairs within the National Tax Service, which set the general guidelines and standards for the handling of liquor tax affairs for the purpose of increasing the amount of liquor tax revenue, and there is no external legal effect of the court or the citizens, and thus, the above provision on the handling of liquor tax affairs and the designation under the conditions pertaining thereto does not necessarily have to be revoked, on the ground that the pertinent provision and purport of the liquor tax law, and all circumstances of the pertinent case are relevant to the revocation of a license by comparing it with the necessity of significant public interest, etc. that may justify the revocation of a license with the other party’s disadvantage received by comparing it

In light of all the circumstances revealed in the arguments in this case, although the Plaintiff supplied alcoholic beverages to a non-licensed licensee, thereby undermining the distribution order of alcoholic beverages and indirectly causing risks to preserving liquor tax (the state tax is collected from a manufacturer or a bonded area and the transaction with a person who has no license for alcoholic beverage sales cannot be deemed to cause direct danger to preserving liquor tax merely because the Plaintiff traded with a person who has no license for alcoholic beverage sales). The Plaintiff’s actual transaction with a non-licensed licensee is not exempt from liquor tax or relevant tax, and the transaction volume with a non-licensed licensee is merely 0.3% during the same period compared to the Plaintiff’s total trading volume, and the transaction volume with a non-licensed licensee is merely 0% during the same period. The circumstances revealed in the arguments in this case, such as the Plaintiff’s recent negotiation for attracting foreign capital is proceeding, and thus, each disposition revoking the Plaintiff’s above license on the ground of the Plaintiff’s violation is unlawful as it goes beyond the scope of discretion of the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judge Gu-Appellee (Presiding Judge)